BPA Awardees Cannot Challenge Fellow Awardees, GAO Says

To file a viable bid protest at GAO, the protester must be an “interested party.” Intuition might say that an awardee under a multiple-award vehicle like a blanket purchase agreement should be able to protest other awardees, right?

The GAO recently held otherwise.

In Al Qabandi United Company, W.L.L., B-415353.8 (Dec. 11, 2018), Al Qabandi protested an award of a BPA by the U.S. Army Materiel Command.

The original RFP called for an award of up to eight fixed-price BPAs for the provision of non-tactical vehicle (“NTV”) leasing and maintenance services in Jordan, Kuwait, Qatar, and the United Arab Emirates. The RFP did not guarantee awardees would be given a task order award nor any number of minimum orders. The RFP also included language allowing for additional contractors or services in other countries.

On October 1, 2018, Al Qabandi was one of eight companies awarded a BPA for these NTV services.

On October 12, TYD Services & Car Rental, of the United Arab Emirates, filed an agency-level protest challenging the agency’s evaluation of its technical proposal to the RFP. This protest, and the Army’s subsequent reevaluation of TYD, resulted in the Army issuing a ninth BPA award to TYD.

Al Qabandi reentered the scene to protest TYD’s award on two fronts. First, Al Qabandi contended that this additional award was inconsistent with the original maximum eight awards detailed in the RFP. Second, Al Qabandi contended that inclusion of TYD would “subject [Al Qabandi] to additional Competition that was not anticipated and therefore reduc[e its] possibility for successful Task Order award.”

At the GAO, protests can only be filed by “interested parties.” 4 C.F.R. § 21.1(a) states that “an interested party may protest a solicitation…” 4 C.F.R. § 21.0(a)(1) defines “interested party” as “an actual or prospective bidder or offeror whose direct economic interest would be affected by the award…”

One might think that, under this definition, a BPA awardee would be an “interested party” to protest a fellow awardee. After all, as Al Qabandi argued, the larger the BPA pool, the less chance each awardee has of winning orders.

Here, though, the GAO held that Al Qabandi was not an interested party.

The GAO stated that “by definition, an awardee, such as Al Qabandi, cannot be an actual or prospective offeror with respect to another BPA awarded under the same solicitation.” This is because “a contractor that has already been awarded a BPA cannot be awarded additional BPAs.” So while Al Qabandi could have been found an actual or prospective offeror prior to the Army awarding them the work, the award event removed this designation.

The GAO also rebutted Al Qabandi’s claim that by issuing a ninth BPA the Army was submitting Al Qabandi to additional competition. One reason is because “the RFP provided that the award of a BPA would not guarantee a task order award…”

The GAO also found “no merit to Al Qabandi’s specific complaints that [the additional BPA would] increase future competition for orders.” The GAO went so far as to say that Al Qabandi’s claim that the Army should be limited to the eight original BPAs issued, as contemplated in the RFP, is an attempt to obtain “more restrictive, rather than more open, competitions for government requirements.” Here, the GAO found “no merit” to Al Qabandi’s claim that the ninth BPA would impact Al Qabandi’s economic interests by way of additional competition.

This case shows that GAO is unlikely to allow a BPA awardee to protest a fellow awardee, even though a larger BPA pool might decrease the protester’s odds of receiving orders.

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